PFAS in 2023
Posted: January 26th, 2023Authors: Kayla T.
Looking forward to 2023, we expect PFAS will continue to gain momentum as an emerging contaminant and will be a top priority for regulators and the regulated community alike. Not only are there still items from the U.S. EPA’s “PFAS Strategic Roadmap” that have not yet been completed, but PFAS topics were identified several times as U.S. EPA priorities in the U.S. Office of Management and Budget (OMB) “Fall 2022 Agency Statements of Regulatory Priorities” published on January 4, 2023. As we’ve seen so far, we also expect these new changes to continue to be met with pushback and litigation.
PFAS are becoming a bullet point under nearly all environmental discussions, so there are many 2023 PFAS topics to choose from. However, for the purposes of this lookahead, let’s distill the conversation down into three main elements that are expected to expand in the coming year:
1. Regulation and Reporting
To no surprise, 2023 will bring with it more PFAS regulations and reporting obligations, established at both the state and federal level. Several examples include:
U.S. EPA published the proposed rulemaking on December 5, 2022, which would add the TRI-regulated PFAS to the list of “chemicals of special concern,” thereby making them ineligible for the “de minimis” exemption for threshold and release calculations. This changes supplier notification requirements, among other things. Currently, the de minimis level is 0.1% for perfluorooctanoic acid (PFOA) and 1% for all other listed PFAS. The comment period ends on February 3, 2023, and comments are expected to be considerable.
U.S. EPA published the “Regulatory Determinations for Contaminants on the Fourth Contaminant Candidate List” in March 2021, which included a final determination to regulate PFOA and perfluorooctane sulfonic acid (PFOS) in drinking water. A federally enforceable drinking water standard has been long awaited by many state regulators, who up until this point have either established their own state-enforceable standards amid public calls for regulation or deferred to U.S. EPA. The proposed rulemaking will include both a non-enforceable Maximum Contaminant Level Goal (MCLG) and a federally enforceable standard, or Maximum Contaminant Level (MCL)/treatment technique. U.S. EPA anticipates proposing the rule in early 2023 and finalizing the rule in 2024. Although the preliminary rulemaking is currently focused on PFOA and PFOS, U.S. EPA will be evaluating additional PFAS for regulatory consideration as well.
U.S. EPA published a proposed rulemaking for the “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances” on September 6, 2022. If finalized, this rulemaking would affect CERCLA reporting, disclosure, transportation, investigation, and remediation requirements. The comment period on the draft rule was closed on November 7, 2022, and U.S. EPA anticipates finalizing the rule in the Summer of 2023.
U.S. EPA is still in the process of evaluating the toxicity and health effects of PFOA, PFOS, PFBS, and “Gen X” chemicals [i.e., hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt] to determine if they should be listed as “hazardous constituents” under RCRA. U.S. EPA has outlined a plan to initiate rulemaking to designate the four PFAS as RCRA Hazardous Constituents under Appendix VIII, which is the building block for eventual designation of certain materials containing these compounds as “hazardous waste.” No specific timeframe on the potential decision has been provided at this time, but this is another important item to watch out for as it would have significant implications.
U.S. EPA issued a proposed Toxic Substances Control Act (TSCA) rulemaking on June 28, 2021 to require certain persons that manufacture (including import) or have manufactured listed PFAS in any year since January 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures, and hazards. U.S. EPA is incorporating public comments and additional information received during the comment period and is anticipating issuing the final rulemaking in early 2023.
Also anticipated in early 2023, U.S. EPA is planning to issue a proposed rulemaking for a Significant New Use Rule (SNUR) under TSCA for PFAS that are designated as “inactive” on the TSCA Inventory. The SNUR would require a 90 day notification to U.S. EPA prior to the manufacture or processing of any “inactive” PFAS.
2. Sampling and Testing
Another area of expansion we are expecting to see in 2023 is PFAS sampling and testing. Not only do we expect more sampling and analytical methodologies to become available, allowing for greater quantification, research, and development of PFAS data, but we also expect to see more monitoring and testing requirements. For example:
- Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs
U.S. EPA issued a memo to the Regional Water Division Directors on December 5, 2022, recommending that states use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS and to take actions using their pretreatment and permitting authorities, such as imposing technology-based limits on sources of PFAS discharges. The guidance in this memo, along with the guidance provided in the April 2022 memo relating to monitoring requirements, lays the groundwork for agencies to establish monitoring, sampling, and limitation requirements in NPDES permits. Newly issued NPDES permits or permit renewals may start to include such provisions in 2023 depending on the source category.
U.S. EPA published the fifth Unregulated Contaminant Monitoring Rule (UCMR 5) on December 27, 2021. UCMR 5 requires drinking water samples be collected for 30 contaminants (29 PFAS and lithium) at public water systems. Sampling will begin in 2023.
In conjunction with the “PFAS Strategic Roadmap,” U.S. EPA also published its “National PFAS Testing Strategy” in October 2021. Under the strategy, U.S. EPA has selected PFAS to be tested based on an approach that breaks the large number of PFAS into smaller categories. The first set of testing orders were issued in June 2022. The next set of testing orders for trifluoro(trifluoromethyl)oxirane (HFPO), used in making plastics, were issued to certain companies on January 4, 2023. Testing orders will continue to be rolled out in phases, with more phases anticipated in 2023.
Although generally speaking PFAS air emissions are still the least talked about topic with the least amount of available data, requirements and sampling techniques are growing and will continue on that trajectory in 2023. If you haven’t read through Steve Rathfon’s discussion of Other Test Method 045 (OTM 045) in last week’s Lookahead Article, check it out!
PFAS are a challenging topic, with regulators and the regulated community alike working to balance data availability and public concerns. A key piece of the regulatory process is public involvement and transparency with affected communities. Many state agencies have dedicated PFAS websites, posting PFAS news and facts, and new to 2023 is U.S. EPA’s interactive “PFAS Analytic Tool”. This tool will serve as a publicly available landing page for PFAS-related data across the country. The tool allows users to search for PFAS manufacturers, releases, completed testing, and PFAS occurrences in a given community using a robust mapping, charting, and filtering functionality. The tool is compiled of data from several subsets, including but not limited to, drinking water testing from the UCMR, site specific sampling required by state agencies, and data reported under rules such as TSCA and TRI. This tool will help communities gain a better understanding of local PFAS sources.
It’d be safe to assume that permitting, monitoring, reporting, and other PFAS obligations and investigations will continue to grow for facilities. Even if you aren’t in an industry involved in the manufacturing of PFAS products, expect there to still be a crossover into your operations – for example, with the need to understand whether any of your suppliers use PFAS, whether any states that you supply to have consumer product PFAS declaration requirements, or if any neighbors are contributing to local PFAS contamination. The most prudent thing you can do to prepare for potential change is to review your materials and products on-site and determine if any could be a potential source of PFAS. This is a proactive first step to understand whether or not you may be impacted for future regulations. If you have any questions or would like further information, please reach out to me at firstname.lastname@example.org.